Terrorist Asset-Freezing etc Bill

Second Reading, House of Commons 15 November 2010

Key points

The Commission recommends the Terrorist Asset-Freezing etc Bill is amended to ensure that the guarantee of fair trial rights is put on the face of the Bill, in particular to incorporate the principles of the judgement in Secretary of State for the Home Department v AF (No 3).

The Commission considers the Bill, as currently drafted, contains insufficient safeguards to ensure compliance with the Human Rights Act 1998, in particular protocol 1 Article 1 of the European Convention on Human Rights (the Convention).

In coming to this position, the Commission has obtained the opinion of Tim Owen QC as to the compatibility of the provisions of the Bill with the Convention. As such, the Commission considers there is a significant risk that the regime, if passed into legislation, could be subject to successful challenge in the Courts.

Terrorist Asset-Freezing etc Bill

Commission’s position

The Commission recognises the duty on governments to protect public safety and accepts that circumstances might arise where specific measures are required to address the threat to public safety.

The Commission welcomes the previous stated intention of the Government to ensure that counter terrorism powers are necessary, effective and proportionate and meet the UKs international and domestic human rights obligations

The Commission welcomes the improvements made to the Bill during its passage through the Lords, in particular the clarification of the appellate role of the court.

The Commission would wish to see the necessary fair trial processes be fully applied to individual cases. This includes access to funding for legal representation and sufficient access to secret evidence to enable the applicant to effectively instruct their special advocate to challenge such evidence. The Commission believes the legislation could then be compatible with the right to a fair trial under Article 6 of the Convention.

Counsel advice sought by the Commission states:

"In our opinion, while the essential thrust of the Bill’s aim to achieve close (indeed absolute) control of the financial lives of those who are in fact engaged in terrorism or terrorist-related activity is proportionate and therefore compatible with the requirements of ECHR, the concerns highlighted by the EHRC do raise a serious question as to whether the Bill in its current form does comply with the requirements of Article 1 of the First Protocol to the Convention.”